PEOPLE v. KENDALL

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Cyril KENDALL, Defendant-Appellant.

Decided: March 28, 2006

BUCKLEY, P.J., SAXE, MARLOW, WILLIAMS, JJ. Laura R. Johnson, The Legal Aid Society, New York (William B. Carney of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Morrie I. Kleinbart of counsel), for respondent.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered September 16, 2003, convicting defendant, after a jury trial, of grand larceny in the second and third degrees, offering a false instrument for filing in the first degree and criminal possession of a forged instrument in the second degree, and sentencing him to an aggregate term of 11 to 33 years, unanimously affirmed.

 The court properly granted the People's Batson application (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986];  People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235 [1990],cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50 [1990] ).   The record supports the court's finding that the nondiscriminatory reasons provided by defense counsel for the challenges in question were pretextual.   This finding is entitled to great deference (see People v. Hernandez, 75 N.Y.2d 350, 356, 553 N.Y.S.2d 85, 552 N.E.2d 621 [1990], affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991] ).   Defense counsel failed to question these panelists on the subjects purportedly forming the basis for his challenges (see People v. Torres, 289 A.D.2d 136, 137, 734 N.Y.S.2d 174 [2001], lv. denied 97 N.Y.2d 762, 742 N.Y.S.2d 623, 769 N.E.2d 369 [2002];  People v. Robinson, 226 A.D.2d 561, 562, 640 N.Y.S.2d 613 [1996], lv. denied 88 N.Y.2d 884, 645 N.Y.S.2d 458, 668 N.E.2d 429 [1996] ), there was evidence of disparate treatment of similarly situated non-white jurors (see People v. Sanford, 297 A.D.2d 759, 747 N.Y.S.2d 789 [2002], lv. denied 100 N.Y.2d 565, 763 N.Y.S.2d 823, 795 N.E.2d 49 [2003] ), and the proffered reasons were generally without substance.

After the trial court reviewed the People's challenges, it properly denied defense counsel's Batson application.   The court correctly determined “that the defense has not made out a prima facie case” of racial discrimination in the prosecutor's exercise of peremptory challenges (see People v. Brown, 97 N.Y.2d 500, 507-508, 743 N.Y.S.2d 374, 769 N.E.2d 1266 [2002] ).

Defendant's remaining contentions, including his Confrontation Clause argument (see People v. Kello, 96 N.Y.2d 740, 743-744, 723 N.Y.S.2d 111, 746 N.E.2d 166 [2001] ) are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.